Minister of Public Infrastructure David Patterson was yesterday ordered by the High Court judge Gino Persaud to provide reasons for his takeover of the operations of the Berbice bridge, the Berbice Bridge Company Inc. (BBCI) said yesterday.
In November last year, BBCI mounted a legal challenge to government’s takeover of the bridge and the authority of Patterson to prevent it from instituting increases.
In its application to the High Court, which lists Patterson and the Attorney General as first and second named defendants, respectively, the BBCI had given notice that it was seeking orders from the court quashing the proclamation issued for the takeover of the bridge.
Two months prior to the court action, the bridge company had announced huge toll increases for users of the bridge, which it was hoping to implement with effect from November 12th, 2018.
The announcement had been met with opposition from Patterson, who had noted that government was in no way going allow “unconscionable increases.”
Later, while calling the planned increases a threat to public order and safety, Patterson issued an order for the functions of the BBCI, to maintain and operate the bridge to be exercised by government and to prevent toll increases.
In a press release issued yesterday, BBCI said that the court ruled in favour of the application for an order that the Minister of Public Infrastructure provide reasons for the Toll Order made by him. The Toll Order effectively froze the toll fares of the BBCI, thereby preventing the BBCI from making the necessary increase to sustain its operation, it said.
According to the release, three applications to government for adjustment of the toll in accordance with an agreed formula in the Concession Agreement, from the inception of the bridge coming into operation in 2008, have “all been refused.”
In the meantime, it added that BBCI is awaiting a date from the court for case management, which it expects soon, so that the case can proceed to hearing.
The release explained that after the BBCI published new fares, the Minister made the Toll Order under which the government took control of the Berbice Bridge and rescinded the proposed tolls.
The BBCI then wrote the Minister to be provided with reasons for the decision under Section 15 of the Judicial Review Act, which provides that such reasons be given within fifteen days of a written request where a decision is made by a public authority. It said the Minister did not respond.
Thereafter, the BBCI filed its case challenging the Toll Order made by the minister and seeking, among other things, that the court order Patterson to supply to it a statement setting out the findings on material questions of fact referring to the evidence or other material on which those findings were based and to give reasons for his decision to take over the operations of the bridge.
The BBCI, in its court action, argues that in accordance with clause 17.1 of its concession agreement with the government, dated June 12th, 2006, it is the bridge company that shall be obliged at its own expense to operate and maintain tolls.
Further to that, the company is contending that Section 4(2) of the Berbice River Bridge Act provides that subject to subsection (l) (d) (iii) and to the terms of the concession agreement, it is the BBCI which may specify different toll amounts in relation to the use of the bridge by reference to such circumstances or combination of circumstances as the company may, after consultation with the subject minister, determine.
According to the BBCI, the toll increases it announced were an essential requirement to ensure that it can continue to execute its mandate. Against this background, it noted that it had applied to the government for an adjustment on three occasions—namely, March and August 2015 and January 2016, but received no responses.
Further to that, the company said that it has accumulated losses of $2.8 billion and faces bankruptcy.
The company is seeking the following orders: (a) An order of certiorari quashing minister Patterson’s edict that the functions of the bridge to maintain and operate it be exercised by government; (b) An order of certiorari quashing Patterson’s pronouncements prohibiting an increase in tolls; and (c) An order of prohibition prohibiting Patterson or the government from exercising the functions of maintaining and operation the bridge.
Apart from the orders being sought, it is also asking the court to make declarations that the minister has no power under the Act, or otherwise, to approve or reject an increase in tolls by the claimant and that his order so doing is ultra vires sections 4 and 12 of the Act.
It also wants a declaration that Patterson’s order was unconstitutional, null, void and of no effect in that it is tantamount to the compulsory taking of possession or compulsorily acquiring an interest in or right over property, that being the bridge owned by the claimant, without prompt and adequate compensation in violation of article 142(1) of the Constitution of Guyana.
Additionally, the company is seeking a conservatory order prohibiting the defendants, by themselves, their servants and/or agents from assuming the functions of the claimant as the concessionaire to maintain and operate the bridge.
A conservatory order is also being sought prohibiting the defendants by themselves, their servants and/or agents from ordering or continuing to maintain the order that the tolls levied and collected and any exemptions from the payment of tolls shall be the same as those levied, collected and exempted not to be increased.
Additionally, the bridge company is seeking costs and all other orders which the court may deem just to grant.
